Don't let the bastards geofence you in

Police efforts to geofence you just took a big hit in the Supreme Court.

And this decision might be very helpful against Flock business practices.

Today I’m sharing two things:

A March message you never got to see
The story behind why you didn’t see it — until now

Not Just Along for the Ride

For over two decades, we’ve worked alongside a top legal team defending the Bill of Rights, especially the First, Second, and Fourth Amendments. Together we’ve stood behind landmark cases with amicus briefs: Wisconsin Right to Life (2007), Graham (2016), Carpenter (2018), Collins (2018), Loper Bright Enterprises (2024), and more.

Through RealCampaignReform.org, Inc. (predecessor to Downsize DC), I was the organizing plaintiff in (Ron) Paul v. FEC. Citizens United was one of our partners, and our case went all the way to the Supreme Court as part of McConnell v. FEC (2003).

In two LANDMARK cases, we didn’t just help win — we supplied the winning argument in Citizens United (2010) and Jones v. U.S. (2012). Amazing!

The Supreme Court has delivered a string of good Fourth Amendment decisions since Jones. We were positively involved in some of them.

Earlier this year, our lawyers brought us another big one. You’ll read about it below. But…

They weren’t clear that I’d agreed to sign on. I was about to hit Send on the message that you’re about to read below. But then I discovered the brief had already gone to the printer without us. My fault. I could’ve been clearer. Lesson learned. But there is…

GOOD NEWS: THE FOURTH AMENDMENT SIDE WON.

A great result — but it makes the miscommunication sting more. I wish we’d been one of the authors of this victory.

Here’s why this case matters to you. We’ve been on the front lines repairing the damage the Fourth Amendment took from the 1960s through Jones. That work isn’t finished. Please read on because there’s more for us to do.

—The original March message follows—

Will the State use your phone to geofence you in, or will you use our Supreme Court brief to fence in the State?

The Fourth Amendment Fences In The State

Here’s the question…

Should the State be able to acquire your location through your phone without a specific warrant stating your name and the evidentiary justification for searching your phone information?

If not, please help us submit a Supreme Court amicus brief in the following case…

We want to file a brief with the Supreme Court in the criminal case U.S. v. Chatrie.

Geofencing You In

QUESTION: Can The State require phone companies to tell them all the people who were in the area where a crime was committed?

In this case, the crime was a bank robbery in Midlothian, Virginia.

A process called “geofencing” allows phone companies to determine a person’s whereabouts within 3 meters, including their elevation.

In this case, Google aided the police by providing anonymous data from 19 phones. The police whittled that down to 9 phones. Then, using Google data, police determined that Okello Chatrie was their person of interest.

This turns the normal warrant procedure on its head. Warrants name specific persons to be searched, not groups of people.

The district court judge found the search unconstitutional. Yet the judge allowed the evidence to be used because law enforcement could not have reasonably known that its actions violated the Fourth Amendment. Did you catch that? Police ignorance about the law was an excuse to proceed with an unconstitutional act.

The Fourth Circuit affirmed the district court, with some judges arguing the police action was not even a search! Others said there was no “reasonable expectation of privacy,” since Chatrie had already consented to let Google have his location information.

Just like you probably do.

Our Brief Will Argue…

There was a search (obviously).
The “good faith” exception to the “exclusionary rule” does not apply.
The issue is not whether Chatrie had a “reasonable expectation of privacy,” but whether he has a property right in his phone information that the Fourth Amendment is bound to protect, as it protects the information contained in a person’s papers.

We have made this kind of Fourth Amendment property rights argument many times. We led the way in the landmark U.S. v. Jones, in which our unique argument prevailed.

This case could be another step toward a surveillance state, or away from it. Nothing prevents phone data from being used to fight crime, so long as a proper judicial warrant is used to search for information about a specific person. Otherwise, we run the risk that the State will eventually use this power to identify and persecute people with political views they deem harmful.

We can take heart from the dissenting opinion written by Fourth Circuit Judge Gregory…

“The people’s rights against unreasonable searches and seizures cannot bend to accommodate the volatility of technology. Rather, new technologies must bend to accomplish the vitality of the protections guaranteed to the people under the Fourth Amendment.”

Please also consider that geofencing is even more intrusive than the “cell site location information” we successfully addressed in the Carpenter case.

Good intentions sometimes lead to awful results. If results matter to you, if you respect our record, and you understand that your voice and our voice are needed here, we can file an amicus brief on the merits of this case in the U.S. Supreme Court.

Doing so costs money.

—-End of March Message—-

I just spoke with our attorneys, and we’re now paying attention to the Flock situation. In particular, we’re watching a case in Virginia. You can help support future briefs and our ongoing work.

I Support Amicus Briefs

Note: That button takes you to Downsize DC Foundation’s “Zero Aggression Project.” By using the ZAP form, your donation can be tax-deductible.

Thank you in advance!

Set your own agenda,

Jim Babka, President
Agenda Setters by Downsize DC

Today’s Action: Support future amicus briefs